*3 COX, Before WILSON and Circuit Judges, RYSKAMP*, Judge. District WILSON, Judge: Circuit Janssen prisoner serving rape, concurrent life sentences for kidnaping, aggravated sodomy, ap- peals from the district court’s denial of his petition for a corpus writ habeas filed pursuant § to 28 U.S.C. 2254. Reynolds argues that attorney, his defense William Hankins, labored under conflicts of inter- pre-trial est at both the and the immediate post-trial case, stages these conflicts rendered Hankins’s representation constitutionally ineffective. After a careful consideration record, briefs we conclude potential Hankins had a conflict of interest at stage Reynolds’s ripened case that never into an actual con- However, flict. stage, operated Hankins an actual under conflict compromise resulted * da, Ryskamp, The Honorable sitting by designation. Kenneth L. U.S. Dis- Judge trict for the Southern District of Flori- plead would and Thomas whereby Harris for the benefit interests accept charge and rape guilty party. another twenty recommendation sentencing period in this received exchange, eight years. to serve years, deficient, dis- and the constitutionally be charges would the remainder such to make failing erred trict informed prossed. nolle part, affirm in we Accordingly, finding. securing a possibility olds of the case remand part, reverse prosecutors, from arrangement di- court, instructions with accepting benefits possible discussed County, of DeKalb Court Superior rect possible versus plea arrangement *4 opportunity the petitioner grant to Georgia rejected Reynolds trial.2 to going risks the basis on proceedings post-trial for new innocence, and offer, his insisting on the assistance ineffective his claims at trial. his chances to take elected counsel.1 trial, Hankins the morning of
theOn and Thom- Harris Reynolds that informed I. outlined plea deal the accepted as had co- his two learning Upon above. FACTS Reynolds step, taken had defendants (Arlee co-defendants and three Reynolds secure attempt to to asked Curtis, and Shionoski Harris, Lee Andrew prosecutor The arrangement. plea same Coun- by Thomas) a DeKalb indicted were to offer the same unwilling to make was for jury in 1981 grand permit to offered ty, instead and Reynolds, robbery of and sodomy, charge rape rape, kidnaping, guilty plead him to assault aggravated sentencing recommendation Caroline Garritano a without Com- Kevin boyfriend, agreement former for the state’s exchange her upon indi- Reynolds was charges. defendants of the other Each prosse panik. nolle unaccepta- attorneys for but the deal proposed plea represented, vidually found Harris, all worked to trial. ble, Thomas went the case County Public DeKalb office in the remaining co-defen- Reynolds and attor- private retained Curtis Defender. po- substantially adverse Curtis, dant, took defense. ney for his re- defense Reynolds’ trial. at the sitions the evidence the fact heavily on attorneys for lied period, pretrial In the the evi- stronger than was Curtis against Thomas worked Harris and co-defendants Reynolds Reynolds, and state, implicating dence with plea arrangement out permit ris, offered and recalled in- proceedings should new 1. These exchange rape in guilty to Reynolds plead for a Motion opportunity file clude twenty years. The Trial, opportunity agreement to serve well as for an New Recommenda- judge’s Report appeal. new offered was suggests that tion arrangement plea terms and Thom- Harris arrangement as plea same In point are unclear. at this offered event, from the record clear it is as. evi- subsequent federal testimony offered negotiations engaged in that Hankins Reynolds's hearing, prosecutor dentiary behalf, and Reynolds's on prosecutor with more felt that he indicated case state's offer. rejected the Har- Thomas co-defendants culpable than hoped profit comparison.3 denied both defendants’ motions. Curtis olds did not testify trial, though Curtis separate secured counsel for his appeal. did, where he denied participation in the crime and testified only encounter PROCEDURAL HISTORY
with the victim on the night question came when voluntarily she entered his procedural history of this case is (presumably house after the crime oc- lengthy and complex, though our recount- curred) and asked to use the restroom. ing itof will brief. be Following unsuc- Curtis’s mother corroborated his story, cessful direct appeal, Reynolds filed two and as a result of this testimony, the trial state and two federal petitions for writs of judge held her in contempt of court for corpus habeas over the next years. seven perjury and had her incarcerated. Nei- During the course of his second federal ther Harris nor Thomas testified at trial. petition, habeas Reynolds became aware of two (1) especially salient facts: that Han- proved unsuccessful, kins was a member of the public same as both Curtis Reynolds were convict- defender’s office as the attorneys that rep- *5 ed rape, aggravated sodomy, kidnaping, resented his co-defendants Harris and and the lesser included simple offense Thomas, (2) and represented battery. Both defendants were sentenced both Curtis and post-trial the to concurrent life terms on the rape, sod- stages of the case. As was un- omy, and kidnaping charges, and 12- aware of problems these until point, month sentences on the simple battery he had not addressed them any count, state also to be served concurrently. collateral proceeding, and the district court lawyer The representing Curtis with- dismissed his petition habeas without prej- trial, after drew the and the trial judge udice so that he could make the conflict of appointed Hankins represent to both Cur- arguments the state level. tis and at the “Motion for a New Reynolds promptly filed third state ha- Trial” stage of the case. Hankins filed a petition, beas arguing that his counsel la- motion for a solely new trial Reynolds’s on bored under an unconstitutional conflict of 12, behalf on 1982; March on 22 March interest in pre-trial both the that year, he filed the same motion on stages of his case. Curtis’s behalf. 17, On March 1983, Han-
kins filed a In 1994, “brief in support of June of Muscogee defendant’s the County trial,” motion for a Superior new which Court contained dismissed third the names of both Curtis and Reynolds.4 petition habeas as successive under Geor- brief, In the gia made of argu- series law. Georgia After the Supreme Court ments for a new trial on affirmed, behalf of both Reynolds filed the peti- instant 31, defendants. 1983, On March the court tion for corpus federal habeas relief the 3. Hankins testified at the federal habeas evi- neither of these conditions held true dentiary hearing strategy that his had been to olds. shift as possible blame much as onto Curtis co-defendants, the absent to "shrink 4. The record does not reflect the reason for in the sight.” courtroom and be out of Han- year-long the separating hiatus the motions kins’s was not without foundation. for a new the brief support clearly The victim identified being Curtis as those motions. attackers, one of her and there was scientific linking crime, evidence Curtis to the while
1342 ney ineffective assistance due October rendered District Northern interest, a conflict of which is a mixed argued 1994. While state subject also de question of law and fact proeedurally default- petition instant id; v. Butter novo review.5 See Freund ed, to the judge assigned magistrate (11th Cir.1999) 839, worth, 165 F.3d 862 met “cause petition case found (en denied, banc), 817, 528 120 cert. U.S. procedural to the exception prejudice” (1999). 57, 145 S.Ct. L.Ed.2d 50 magistrate fur- judge default rule. granting recommended ther The Sixth Amendment had success- petition,
habeas guarantees United States Constitution attorney la- that his fully demonstrated right criminal defendants the to effective of interest at both under conflicts bored counsel, assistance and effective assis stages right tance to counsel “unim includes case. by conflicting loyalties.” Duncan v. paired objection by respon- Following Alabama, 1013, 1016 Cir. accept dent, declined the district court 1989). duty loyalty unfettered recommendation, judge’s magistrate among one’s clients the most central of magistrate the case and returned attorney’s responsibilities. criminal defense briefing and consider- judge for further Washington, 466 See Strickland U.S. April ation. 668, 692, S.Ct. L.Ed.2d Report and Recom- judge issued new (1984). mendation, finding that the cause again *6 Reynolds’s pro- rule excused prejudice of counsel Ineffective assistance However, this time the default. cedural in the conflict of context claims interest judge recommended that governed by the are standard articulated deny Reynolds relief on the court district Supreme Cuyler Court v. Sulli interest claims. The district conflict of van, 335, 1708, 446 100 64 U.S. S.Ct. adopted magistrate’s recommen- (1980). Cuyler a L.Ed.2d 333 establishes 2000, January granted a of dation two-part test that use to evaluate we limited appealability certificate of attorney constitutionally an in whether Reynolds was denied the issue of whether due to a conflict of interest. To effective of counsel due to effective assistance Cuyler, peti a show ineffectiveness under conflict(s) attorney’s of interest. possible (a) tioner must de demonstrate: attorney
fense
had an actual conflict of
(b)
interest,
adversely
that this conflict
II.
attorney’s performance.
affected
See
348-49,
Cuyler,
1343
merely
or
possible, speculative,
hypotheti
pre-trial stage, because
law of-
(the
Lightbourne Dugger,
cal
v.
829
conflict.”
County
fice
DeKalb
Public Defender’s
Cir.1987).
(11th
Office)
F.2d
Smith
represented two co-defendants with
White,
Cir.1987),
We actual conflict law firm for purposes of a conflict unless can appellants point interest (b) analysis, conflicts affecting one sug- specific instances the record to member a law firm or law office are impairment an or gest actual conflict (c) firm, attributable to all members of the Appellants their interests.... must the interests of defendants Harris and showing make factual of inconsistent contrary Thomas were of Reyn- those interests and must demonstrate that the olds, one office cannot repre- law have attorney possible made choice between sented the three of them without actual action, alternative causes of such elic- (d) interest, conflict the conflict (or elicit) failing helpful iting evidence adversely affected he because to one but client harmful the other. did not plea arrangement secure the same choice, If he did not such make as his co-defendants. remain(s) hypothetical. conflict Smith, tentatively accept can We the first F.2d two premises of Reynolds’s argument. While Assuming a can defendant demon public defenders’ offices have certain char attorney strate that his labored under an distinguish acteristics that them from typi interest, Cuyler actual conflict test firms, cal law our cases have not drawn demands that he show conflict Lightbo distinction between the two. See adversely affected the urne, F.2d n. 12 (finding at 1023 effect, prove de received. To adverse (a) under the Florida fendant needs to Code Professional demonstrate: *7 attorney pursued defense could a Responsibility, may have “a conflict arise when (b) plausible strategy, alternative that this public represents a defender’s office clients reasonable, strategy alternative and interests.”); Single with adverse v. Mills (c) that the alternative not (11th Cir.1998) 1273, tary, 161 F.3d 1287 it with at followed because conflicted possibility a (acknowledging the conflict Freund, torney’s loyalties. external See in of interest simultaneous 165 at F.3d 860. by public of co-defendants defender’s of fice). now apply principles We these to each
Reynolds’s claims. It is also well in this established
A) Interest at Conflict lawyer’s circuit that a confidential knowl Stage the Pre-trial edge loyalties imputed can to his and be partners employees. current See Reynolds that contends he did not re- Kitchin, 900, loyalty ceive Hankins’s undivided in the 592 F.2d United States 904 1344 test
(5th Cir.1979)6; Cuyler. application An American Cast Cox v. v. White to the developed in Smith Co., F.2d Pipe Iron instant case will illustrate the facts Freund, n. Cir.1988); an conflict.” absence of “actual rules of the state disciplinary The current attorney from an preclude in bar petitioner to do requires a two Smith if one of his or her a client representing attorney that his things to demonstrate represent that client partners cannot law first, conflict;” he under “actual labored interest. See Ga. Rules to a conflict of due showing inconsis- must make “a factual Conduct, 4-102, § Rule Professional interests,” second, he must dem- tent 1.10(a) (2000).7 loyalties The duties in attorney acted some onstrate that his imputed to his attorney are particular a reality of these con- way reflected Reynolds is partners employees, (or interests, flicting “eliciting fail- such as represents law office correct elicit) testimony helpful to one client ing to divergent with inter- criminal defendants Smith, See or harmful to the other.” Sixth running afoul of its clients’ risks ests Reynolds likely F.2d 1404-05. has rights. Amendment showing of in- requisite made the factual consistent interests. was strate- surrounding circumstances gically upon defense based committed Reynolds in representation of Hankins’s witnessed, supposition that he but did were sufficient to create stage in, the crimes his co- participate not risk of conflict of interest. a substantial “Blame-shifting” defenses defendants. colleagues in professional among co-defendants are reflection of representing public office were defender’s interests, inconsistent has co-defendants, and those co- successfully sought demonstrated very per happened defendants to be the employ such a this case. defense Reynolds blamed for the crime. sons whom However, Reynolds has shown that possibility that the interests of one of performed a manner the three co-defendants would be sacri way loyalties reflected the divided ficed for the benefit of others was findings The factual his office. considerable such situation. district court indicate that Hankins dis- successfully a po demonstrated that has charged way in a his duties tential conflict of interest existed Reynolds’s in- completely consistent with representation of these three co-defen *8 early stages rep- In the terests. office, public dants the same defender’s resentation, timely informed given posture the factual case. arrangement Reynolds plea However, Reynolds cannot take nec- offered, prosecutor explained implica- essary step, next demonstrate that guilty, as well as the pleading tions potential into possible going conflict ever blossomed risks and benefits accepted Reynolds’s trial. Hankins deci- meaning an actual conflict within Prichard, Georgia at City v. A rale was in effect in 6. In 7. similar Bonner (11th Cir.1981) (en banc), this trial. time of See Ga.Code Pro- adopted binding precedent all deci- § Responsibility, Directory Rule 5- fessional sions of the Former Fifth Circuit handed 105(d) (1980). prior to down October sion to risk an adverse verdict trial. received opportunities several to make a Hankins informed Reynolds day of deal with the prosecutor in exchange for a the trial of the fact that Harris and sentence, reduced and it was his decision Thomas had accepted particular plea to decline an arrangement. such arrangement, Reynolds, changing his has not demonstrated that the guilty pleas mind, decided to accept if offer avail- of Harris and Thomas adversely affected able. prosecutor declined to make options stage. See the same offer to and Hankins Newsome, Smith v. 1461, 1463-64 F.2d informed of the conditions un- (11th Cir.1989) (holding that lawyer’s der prosecutor which the accept would a performance was not adversely affected plea. guilty Nothing of Hankins’s “joint when representation did prevent not actions indicates that he was affected by plea effective client.”) bargaining for either the fact colleagues that his negotiated The ultimate fact is that Reynolds can- pleas guilty for two of his client’s co-de- not identify any flaw in perfor- Hankins’s fendants. mance that was related to the fact that Reynolds argues that the instant case Hankins’s represented co-workers Harris should be analogized to two earlier deci- Indeed, Thomas. the record reflects sions of this court: Zant, Burden v. 24 that representation (11th F.3d 1298 Cir.1994), and Ruffin pretrial stage vigorous, loyal, Kemp, 767 Cir.1985). F.2d 748 and thorough. such, As Reynolds cannot both Burden Ruffin, we found an ac- demonstrate that Hankins labored under tual conflict of interest existed where an an “actual conflict” of interest at this stage attorney representing two co-defendants of the proceedings, and thus cannot meet negotiated a plea arrangement for one in the first prong Cuyler test. exchange for his testimony against the oth- er. B) Interest at the Conflict of present case is distinguishable from Posh-Trial Proceedings and Burden. In both of those Ruffin A glance at the facts surrounding Han- cases, the defense attorney to made a clear kins’s choice sacrifice the interests of one problematic reflects the nature of that rep- client for the benefit of another. It resentation. Hankins was in the untena-
obviously impossible to effectively serve position ble of advancing arguments both urg- clients’ interests in such a zero-sum ing that two granted be game. defendants a new trial after each those defendants had In the case, however, instant Harris’s spent the entire trial attempting to foist and Thomas’s plead decisions to guilty do on blame the other. Reynolds suggests appear to have affected Reynolds’s that Hankins’s loyalty to prevented Curtis prospects of securing agreement. Hankins from advancing certain credible *9 There is no evidence in the record suggest- arguments Reynolds’s on behalf. A close ing that Harris’s and Thomas’s pleas pre- look at the record Reynolds’s vindicates vented effective bargaining for claim. fact, olds. Hankins faithfully relayed prosecutor’s the early plea overtures to Hankins testified that his trial strategy Reynolds, rejected who them. Reynolds was based largely on a to desire shift testimony false of Curtis and his mother charged for the crimes Curtis.
blame
against
Reynolds.
self-serving
that
the evidence
had upon
Hankins felt
Curtis’s
considerably stronger than the
suggesting
Curtis was
statement
that Garritano had
hoped
Reynolds, and he
against
appeared
doorway
evidence
at
after the crime
from a com-
Reynolds would benefit
that
permitted the inference that
occmred
ultimately un-
This
was
parison.
Harris,
Reynolds,
had com-
Thomas
successful,
both Curtis and
mitted the crime without
assistance.
were convicted.
that
mother
held in
The fact
Curtis’s
was
corroborating
contempt for
Curtis’s testi-
in
support
Hankins filed
The brief
false,
mony
that it
as well as
indicates
was
Reynolds’s motion for a new
Curtis’s
prejudicial
Reynolds.
possibly
Hankins
arguments on
a number of
trial contains
that
have
that
argued
admitted
he could
behalf, many
focusing
Reynolds’s
of them
testimony
the false
and his moth-
Curtis
incriminating
the lack
evidence
on
prejudicial
Reynolds,
er
and that
was
notes,
The
against Reynolds.
brief
argument
plausible.
such an
would be
example,
identify
not
that Garritano could
photographic lineup,
in
judge’s Report
magistrate
adequate
that there was not
corroboration
(adopted
by
in full
Recommendation
Reynolds’s alleged
General
confession.
court) found,
the
as a matter of
jury
propriety of the
arguments about the
fact,
“petitioner
that
[failed]
that
show
(made on behalf of both defen-
instructions
could
counsel
have raised
other issue
dants)
were also included
the brief.
on appeal.”
that
not raised
This cur
was
seem to be
argument
One
that would
sory
finding
belied
the record. Han-
notably
by the
case is
dictated
facts
the
kins admitted that there were at least two
that
from the brief. The fact
absent
arguments
he
plausible
that
could have
presented
trial
much of the evidence
on
the
advanced
behalf at
mo
Curtis,
but not
could
implicated
new trial
stage,
tion for a
the record
jury
conclusion that
the
did
lead
the
arguments
reflects that
these
were not
properly distinguish the two defen-
supporting
made in the brief
the motion
Indeed,
the stark differences
dants.
judge’s
magistrate
for a new trial. The
incriminating
presented
evidence
the
to find as a matter of fact that
failure
likely
at-
would
direct most defense
argu
have raised
Hankins could
these
torneys
precisely
conclusion.
post-trial stage
the
amounts to
ments at
general argument concerning
relative
given the
clear error
record
we have.
Reynolds could be
against
lack of evidence
considerably through specific
enhanced
above,
magistrate
than
Other
strength
to the
of the evidence
references
judge
findings
factual
made no detailed
on
evidentiary
hear-
against
At
Curtis.
post-trial conflict of interest
issue.
case,
Hankins conceded
ing
the instant
finding
our
of clear error
Given
making
argument
considered
judge’s
determination
by the
unfairly
tainted
could not
raised additional
have
Curtis,
.
strength
against
evidence
arguments
on
behalf
argument
plausible giv-
phase,
ordinarily
we would
re-
presented
at trial.
en
evidence
for an
mand the case to
district court
Cuyler
application
Appropri-
test.
argument absent from the four-
Another
Cuyler depends heavily
application
the effect that
ate
page brief concerns
*10
surrounding
attorney’s per-
an
unfairly prejudiced by
perjurious
on the facts
testi-
mony
formance,
of Curtis and
and the district court
is the
Curtis’s mother. Han-
kins declined to
argu-
make either of these
appropriate venue for the resolution of
Reynolds;
indeed,
ments on behalf of
he
questions.
factual
could
arguments
not make such
without
However,
case,
in this
we have an ade- breaching
duty
loyalty
to Curtis.
quate record before us to make remand for This
truly
position
was a
untenable
for
findings superfluous.
more detailed factual
attorney.
that,
Hankins even admitted
provides
The record
us with a more than
it,”
“looking back on
may
have had a
appropriately ap-
sufficient factual basis to
conflict of
in
stage.
ply
Cuyler
representation
test to the
import
of these facts is that Hankins
in
stages
received
represented clients with conflicting inter-
judicial
of his case. Remand would waste
ests, and he declined to advance certain
given
sufficiency
resources
of this rec- plausible arguments on
behalf
one due
Matthews,
ord. See Perkins v.
400 U.S.
arguments
the effect those
would have
379, 386-87,
when
court made no
factu- vague arguments that were advanced on
such).
finding
al
supporting
behalf
the brief
Finally,
the motion for a new trial.
nei
(as
Applying Cuyler to the facts
argument
ther
could be made because do
record)
surrounding Reyn
reflected
ing
prejudiced
so would have
in
Curtis’s
post-trial representation,
olds’s
it is clear
terests.
need not show that the
had
Curtis
inconsistent
proceeding
outcome of the
would have
post-trial.
interests both at trial and
The been different had Hankins made the ar
inconsistent interests are illustrated
guments
question.
merely
He
must
arguments that Hankins refrained from
attorney’s
demonstrate that his
conflict of
making at
stage
the motion for a new trial
upon
representa
interest had an effect
proceedings. Reynolds
could have
Lightbourne,
tion that he received. See
(a)
argued
jury unfairly
failed to
(“Once
the court because facts, however,
“clear.” The are not clear
to me. always sup-
It I strategy, reasonable
pose, to file a motion for a new trial in a arguments
criminal case. But
court finds Hankins should have ad- possess
vanced do not much substance. Butterworth, Freund v.
See (11th Cir.1999) (en banc) (alternative possess must sufficient substance alternative).
to be a viable There were trial,
only argu- two defendants on and an jury properly
ment did not distin-
guish the two defendants this case impress judge. Similarly,
would not a trial argument get should
new because Curtis and his mother
perjured themselves an unsuccessful at-
tempt exculpate lacking Curtis is also So,
substance. the facts are not so clear me, proper disposition and the of this
appeal my judg- view is to vacate the denying
ment relief on the claim appro-
and remand to the district court for
priate fact-finding.
Larry ROMINE, Petitioner-Appellant, HEAD, Warden, Georgia
Frederick J.
Diagnostic Center, and Classification
Respondent-Appellee.
No. 99-12449. Appeals,
United States Court of
Eleventh Circuit.
June